California Penal Code section 4530, Escape

Case   Name: People v. Bailey , CalSup , Case #: S187020

Opinion Date: 7/12/2012  , DAR   #: 9562

Case Holding:

Under the particulars of this   case, because attempted escape is not a lesser included offense of escape, the   appellate court, after finding insufficient evidence to support the escape   conviction, cannot modify the conviction to attempted escape. Appellant   was charged with a violation of Penal Code section 4530, subdivision (b) (escape   from custody), with the information alleging appellant "did willfully and   unlawfully escape and attempt to escape." The evidence revealed that appellant   made it past several interior prison barricades but ultimately did not make it   past a final barricade. The prosecutor informed the court that she was trying   the case as an escape, although there was sufficient evidence to support an   attempted escape. The parties agreed to instruct the jury only on escape. The   court informed the jury that escape is a general intent crime and the evidence   need not show that a prisoner left the outer limits of the institution's   property, only that he passed beyond some barrier designed to keep a prisoner in   a specific area. The jury convicted appellant of escape. The appellate court,   relying on People v. Lavaie (1999) 70 Cal.App.4th 456, which requires   an escape from the actual outer boundary of the prison facility, found   insufficient evidence to support the escape conviction and, under Penal Code   sections 1181, subdivision (6) and 1260, determined that it had no authority to   modify the conviction to attempted escape. The Supreme Court agreed with the   lower court's finding that the conviction could not be modified because, under   the elements test, attempted escape, with its requisite specific intent, is not   a lesser included offense to the general intent crime of escape. (People v.   Smith (1998) 64 Cal.App.4th 1458.) An appellate court may make a   modification by applying the established law to the existing facts found by the   jury, not by finding or changing any fact. Here, because the case was tried   solely as an escape, the jury was never required to make a finding of specific   intent, a required element of attempted escape.

If a family member is being charged with escape under California Penal Code section 4530, make sure you hire a lawyer who understands what this charge means, and how this above case affects your case. You need a lawyer who knows his/her way around a courtroom, and who knows when to object and what to fight in court to maximize your chances of a positive result.

George Derieg, Attorney at Law, is the lawyer you need in this situation. He has a supreme amount of courtroom and specifically jury trial experience. Call the Law Office of George Derieg today for a free consult.

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